Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.

This case concerns the meaning of consent in sexual assault law.

LEAF intervened before the Supreme Court of Canada.

Facts

This case deals with the boundaries of consent to sexual activity under Canadian criminal law. The complainant testified that she insisted the accused use a condom during sex. The first time he used one, but the second time he did not. This raises the question: if someone is asked to use a condom, but they do not comply, is the activity considered consensual?

Arguments

LEAF argued that including “sexual activity with a condom” in the definition of “sexual activity in question” promotes substantive equality for equity-seeking groups. Sexual activity with a condom and without a condom are separate acts that require separate consent. This interpretation is a principled approach that affirms and protects the dignity and autonomy of sexual assault complainants, while appropriately limiting the scope of the criminal law.

Outcome

A majority of the Supreme Court clarified that when a person consents to sex on the condition that their partner wear a condom, but the partner does not comply, the sexual activity in question is not consensual and constitutes sexual assault. The majority recognized non-consensual condom refusal and removal as a form of sexual violence that disproportionately impacts women and gender-diverse people. The Court cited LEAF’s submission that “[t]his is even more true for racialized members of these communities.”

LEAF is grateful to Frances Mahon and Kirat Khosa, counsel for LEAF in this case.

Download the factum here.

Read the Supreme Court of Canada’s decision here.

LEAF’s arguments are informed and supported by a case committee composed of academics and practitioners with expertise in relevant issues. The committee members for this intervention are (in alphabetical order): Andrea Krüsi (University of British Columbia), Joshua Sealy-Harrington (Lincoln Alexander School of Law), and Adriel Weaver (Goldblatt Partners).